On Commercialization of Image and Right of Visualization of Commercialization (3)

Third, intangible property rights: the basic attributes of the right to image

The issue of commercialization of images has attracted attention in China's legal profession since the 1990s. Most scholars advocate that a new mode of protecting the rights of the image should be created. However, how to name such rights, how their attributes and connotations and extensions are determined, and scholars still have different understandings.

In various works, the title of rights corresponds to the object of protection, but the scope of the object is different. To sum up, there are the following views:

In a narrow sense. Limit the objects of protection to real characters or fictional character images and give them different rights. Regarding the right to commercialize images, some scholars believe that the basic meaning of “image” is the image of a person in the public. Such right is the right to control the commercialization of the image. According to the "right of publicity" of the meaning or meaning, some of the works will be titled "right of publicity", "right of publicity", "right to public image" and so on. Contrary to the foregoing, some scholars believe that the right to image commercialization is actually the right to commercialization of a fictional character. It refers to the “exclusive right of the author to use his work's role to print on the goods he sells,” or “ The right to use a fictional role and one or all of its confirmation factors with commercial purposes to promote the sale of goods or services.” In view of this, the relevant expressions translate “rights in characters” into “role commercialization rights”, "Fictitious role commercialization rights" and so on.

Broadly speaking. Extend the protected object to all commoditized objects, including real characters, fictional characters, and other commercially available marks, symbols, pieces of work, and so on. This type of right is called "commercialization right", which is the right to use the role or character characteristics that can generate mass demand to use or permit others to use the goods, mainly including the commercialization rights of the real personage image and the goods of the fictional role image. Right to turn rights and other commercialization topics.

Zhong Yi said. Defining the protected object as an image with substantive personality features and fictional artistic features. Their common feature is that they are all images that are associated with vital characteristics and can be divided into real characters and virtual characters. Scholars refer to this category of rights as “right of image” and “right to commercial image”. This expression borrows the American law “right of public ty”, but extends it to a proper extension so that its object of protection can be summed up as an image that can be commoditized and linked to the characteristics of life.

The author believes that the broad sense refers to all objects that can be commoditized, and its scope of protection is too wide. Such as marks, titles, pieces of work, etc., are not normative images and can be directly transferred to intellectual property laws. Narrow sense can be regarded as a certain aspect of image comprehension, and its scope of protection is too narrow. This approach actually emulates American law and classifies the rights of the image of the real person and the right of the fictional character into different legal systems. Therefore, it is appropriate to define protected objects as real characters and fictional character images, and to refer to such rights as image rights. The so-called right of image refers to the right of the subject to commercialize its well-known image and enjoy the benefits. This is a new type of private right.

Regarding the basic attributes of the right to image, scholars also have different views. Generally speaking, there are several theories:

New personality rights theory. The protection of the right to image derives from the right to privacy. Therefore, this system has a close relationship with the personality right law. In the United States, New York enacted laws in 1903 prohibiting the use of names and portraits of others without permission for advertising or business purposes. The Department’s laws are still the principal basis of New York State’s protection of privacy and image rights. Affected by this, some scholars classify the right to image in the category of personality right law. Japanese scholars divide the objects of commercial image rights into the images of famous people and the images of virtual characters and animals, and believe that they are related to personality rights. “The right of personality not only protects spiritual interests, but also protects economic interests. Business image right is a part of personality rights.” The author believes that the interests of the subject of rights are the basic criteria for dividing property rights and personality rights. In the category of civil objects, such personal interests as names, portraits, reputations, honours, etc., traditionally belong to the scope of protection of personality rights and are generally considered not to have direct property content. Although the above-mentioned personality interests and property have a certain connection, if the subject exercises relevant rights to obtain certain benefits, or the subject acquires certain property compensation due to infringement of these rights, these are not the natural content of personality rights. Therefore, the classification of the right to image as a right of personality relative to property rights is difficult to convince. First of all, personality factors such as name, portrait, body, reputation, etc., have evolved from traditional personality interests to commercial personality interests in the process of commercialization, namely, non-materialized new property interests. These obviously cannot be adjusted by the personality right law; secondly, the image of a fictional character, which contains role factors such as name, image, voice, and gesture, is the creative intellectual achievement of the author. This is intellectual property, but in the second development and utilization. "In the formation of commercial property. These of course do not belong to the category of personality right law.

New intellectual property rights said. Most of the image factors are related to creative activities, especially fictional characters, which themselves are an important part of the author's creative intelligence achievements. Based on this, many scholars have included the right to image in the field of intellectual property, but the argument is slightly different: Some scholars call the right of image as a new type of intellectual property that overlaps with copyright, trademark, and trade name rights. Some scholars It is believed that the right to image is an independent intellectual property that is distinguished from copyright, trademark, and trade name rights. The above theories make such a conclusion. The main reasons are that the image can satisfy the constituent requirements of the intellectual product, and the second is that the right to the image already possesses intellectual property rights. The basic characteristics. In this regard, the author has different views: First, on the characteristics of knowledge products, the author has described in a variety of writings, summed up as creative, non-material and open. Image factors have some characteristics of knowledge products, but not all of them. For example, the image factors of real people, including names, portraits, and forms, can be said to be non-material objects, but also known to the public, but it does not have the creativity of intellectual achievements. Judging from the setting of the right-of-image system, it is to regulate the commercialization of the image. Therefore, the object of protection of this right is not a creative image, but a well-known and influential image. In other words, intangible image interests do not exist under the conditions of commercialization because of their creative characteristics, but because of its "appeal to consumers", that is, the value of credit. So, the image is not a knowledge product. Second, regarding the characteristics of intellectual property, many textbooks have been elaborated. Although the characteristics of their descriptions are different, they can basically be summed up as exclusive, regional and temporal. The right to image is an exclusive right and it goes without saying; giving it protection for a certain period of time is also inevitable. However, as far as regionality is concerned, there are some considerations: The so-called territoriality of intellectual property refers to its strict territoriality, and its effectiveness is only within its territory. This means that intellectual property granted under the laws of one country can only be protected in that country. Except for the signing of international conventions or bilateral reciprocity agreements, intellectual property rights have no extraterritorial effect. For the right to image, its regional characteristics are difficult to establish. Take the real person as an example, his name, portrait and other image factors are born. His rights form need not be specially granted. In the process of commercialization, such personal image factors do not lose their protection due to geographical restrictions. What needs to be explained here is that the division of rights types is based on the differences of the targets or interests. For example, within property rights, the object of property rights is an “object”. This right is property right; the object is the payment of a specific person, and this kind of right is the creditor's right. Conversely, different types of rights may also have the same characteristics, such as absolute versus ownership and intellectual property. Therefore, the above view classifies the right of visual identity as intellectual property, and the reason is hard to hold.

Intangible property rights. In the context of legislative documents and legal writing, non-material property rights are called intangible property rights. Some Western countries have used intangible property rights to summarize the exclusive rights of intellectual property. Until the 1960s, intellectual property became the legal term in the world, and some scholars continued to use intangible property rights. This legal term is quite inclusive and has its merits. The author classifies the right to image as intangible property rights, mainly based on the following considerations: First, non-material property is mainly intellectual property, but not limited to intellectual property. The American scholar Schwartz once cited "a new type of property of great value". "These properties include business reputation, trademarks, trade secrets, copyrights, business interests, franchise rights, and fair convenience rights." Another scholar Friedman It also made its own judgment that “the concept of new property has emerged in this century, so employment opportunities, pensions, and government licenses should be treated as new assets. At the same time, U.S. law also considers the following rights as Dematerialized property: The right to use postal services. Employers are free to increase or decrease the rights of workers. The right to free employment of employers. The right of shareholders to choose company directors, the right to tax exemption, the right to prohibit others from selling their own news, and to become a securities dealer. The rights of members, etc. It should be pointed out that it would be inappropriate to equate and commercialize all interest opportunities and qualifications, and to equate political rights and personal rights with private property rights, but it must be admitted that following the emergence of intellectual property, new Non-material property has been continuously generated, which has emerged in the private A new type of intangible property rights system; secondly, translation of intellectual property rights from the basic meaning of “intellectual property right” in English should be called “knowledge (property) ownership.” It is a generalization of all rights that come from the field of knowledge. The intellectual property rights, that is, traditional intellectual property rights, include the three major components of copyrights, patents, and trademark rights. Broad intellectual property rights include copyrights, trademark rights, trade name rights, trade secret rights, place of production mark rights, patent rights, The right of layout design of integrated circuits and the rights of new plant varieties can be said that the scope of the intellectual property system has been determined by the relevant national legislation and major international conventions.

Therefore, it is not appropriate to equate intellectual property rights with immaterial property rights, that is, intangible property rights. This is because, under the conditions of modern commodity economy, new abstract and dematerialized assets are emerging, and their relevance to creative activities and knowledge fields is not significant. Therefore, it is necessary to classify these rights separately. In addition, the modern intellectual property system has matured. Today, with the integration and internationalization of the intellectual property system, creating a certain type of intellectual property in a country or region will not only increase the carrying capacity of intellectual property in the normative sense, but also make it difficult for the international community to recognition. Third, credit assets refer to the commercial personality benefits such as goodwill, credit, and image. Because its value has not yet been fully understood, some scholars have claimed that such property is "intangible property under development." The composition of credit assets has two elements: its internal factors relate to the subject's own capabilities, image, reputation, etc.; its external factors come from the qualifications granted by social organizations, or from the public's evaluation or trust. In the business activities, their own personality factors plus external influences form credit assets that have business credit as the basic content. The author believes that the right to image and goodwill, credit, and franchise are intangible property rights that have non-material properties but cannot be classified in the category of intellectual property. It can be predicted that with the changes in social and economic life, some new intangible property rights will emerge. Therefore, to make such a determination of the right to image is to have an innovative meaning of the dematerialization revolution of property.

Regarding the legislative model of the right-of-image system, from the international perspective, countries are still in the process of exploration, and the more mature and internationally-impacted state is the United States.